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The more important question remains, whether the service of the second, during the pendency of the first, is a nullity or a good service. I am quite clear, from the precedents which have been stated by my brethren, that the prior service is a good service. The pannel's Counsel have admitted, that if the pannel had not pleaded, this service was a good service. Now, I cannot see what difference can be made by his pronouncing the words "Not Guilty." If litiscontestation were to go into account, it would be the impannelling of the Jury which was to constitute it. Before the Jury is sworn, and after the pannel has pleaded not guilty, all objections are open to him, not merely preliminary objections to citation, &c. he may state objections to the relevancy of the libel. On the other hand, the prosecutor is not precluded from getting the diet deserted pro loco et tempore, any more than if no pleading had taken place. The legal inducia must run from the service of the second indictment. But the Court will never refuse any equitable delay which may be asked by the pannel.
LORD JUSTICE CLERK.-I concur in opinion with all of your Lordships, that when objections are taken and answered in the anxious manner adopted in the present case, with regard to a matter of form and practice in our procedure, we ought to take every means of information, and decide with deliberation; and so far from regretting the time which has been spent in this discussion, I have to express my satisfaction, that on the former occasion we adopted the course which was followed of ordering a search into the practice of the Court. But, now that we have the result of that search before us, we are called upon to say, whether the public prosecutor, having, during the dependence of an indictment which has been pleaded to, and upon the relevancy of which Informations were ordered, executed a new indictment, is entitled to proceed upon it against the pannel. I concur with my learned brother on my right hand, that this is the fundamental and preliminary question, and that upon it it is necessary to form our opinions in deciding this case. But after the very clear and luminous statement from the learned Judge to whom I allude, I should be guilty of undue encroachment upon your Lordships' time if I were to enter into a detail of the grounds of my opinion as to that preliminary objection. I shall only say in one word, therefore, that upon a careful consideration of the argument upon the principle and train of practice now before us, I have formed a clear, and will venture to say, an unalterable
opinion, that there is nothing in the law or practice of this Court to prevent a public prosecutor from serving a second indictment during the dependence of a prior one; and that when the legal period of induciæ granted by custom to a pannel has expired, the prosecutor may proceed upon that indictment. As to what he is to do upon the second, that is a different question. But as to the power of serving a second indictment in such circumstances, I do not entertain a shadow of doubt. It seems completely conceded by the learned Counsel for the prisoner, that such has been the practice, and a practice to which no objection can be stated, where a pannel has not pleaded to an indictment. It appears, however, to me, that the moment that concession is granted, there is nothing to hinder a second indictment being served in all cases. For we are brought to very narrow ground indeed, if the whole objection be, that the first indictment has been read and pleaded to; as, after the most careful attention to the distinction taken, I can find no authority whatever for it in law. I am of the opinion already delivered to your Lordships, that there is no foundation for assimilating what is called litiscontestation in this case, to what occurs in civil cases. That point, as far as it could apply, was argued, and in reality decided, in the case of Archibald, against the pannel. Your Lordships see, from the report in Maclaurin, that the Court had every thing before them that could be urged as to litiscontestation precluding the desertion of diet and the service of another indictment; but the decision there went in fact on the ground that there was no litiscontestation in the sense in which it occurs in civil cases; and, at all events, that it could only take place where an indictment has been remitted to the knowledge of an assize. If, therefore, the public prosecutor may raise a second indictment, and proceed upon it at the end of the induciæ, it takes the bottom out of the only difficulty which occurs in this case, and the only solid argument stated in support of the objection. For I am clear that no prejudice could arise to the pannel by the procedure objected to. There is one view of this subject to which I beg your Lordships' attention. Suppose the inducia of a new indictment raised in this case had run to the 20th of May, the diet of the former having been continued till the 19th, it is perfectly clear, that if there had been no meeting of Court on the latter day, the instance on the former indictment would have been extinguished, and no proceeding could have taken place upon it, and nothing would have been required to be entered upon your Lordships' record.
On the 20th of May, however, his Majesty's Advocate would be entitled to move the Court to take up the indictment, the induciæ of which had run, and the diet must of course have been called. Now, could it have been said there was any thing of the nature of litiscontestation, or that the pannel had a jus quæsitum which could have required the interfe rence of your Lordships? There is no authority for requiring it to be shewn the instance has been extinguished, and therefore to that extent the public prosecutor must be held to have abandoned his charge without the necessity of applying to your Lordships. Your Lordships neither have nor would have given the slightest impediment to that proceeding, but must have taken up the second indictment, and have held that with regard to the former indictment there was an end of the case.
But it was said, where the diets happen to fall on the same day the case is altered, and your Lordships are called upon to adopt a proceeding which the pannel says may be favourable to him. If any ground were to be made out for supposing that a pannel could be regarded as standing in the situation Charteris is said to have been placed in, then your Lordships by your authority would afford a remedy for any such hardship. If you saw the public prosecutor (which I cannot suppose possible) attempting to harass a pannel by raising against him a number of indictments in succession, and leaving him doubtful upon which he was to be tried, or take the supposition of several new ones being raised after his pleading to the first, you would exercise that power with which you are entrusted for the good of the country, and afford immediate relief. But if, on the other hand, your Lordships hold, as I do, that after service of a second indictment, both being regular, the public prosecutor has thereby declared, that it is upon the second, and that alone, he means to proceed, and is not entitled afterwards to turn round and say he will go back to the first, there is not only no injury which can arise to the accused, but he has a greater advantage than he could have upon the rule of law he now contends for, of both indictments being held to subsist, and that your Lordships should interfere to have the desertion of the first recorded. The case of Charteris, I think, has not been looked to with so narrow an eye as is proper. It appears from Mr Hume, that Charteris had four indictments served upon him, and that he put in a printed petition stating the hardship of his case, before he was brought into Court for trial, praying for the authority of the Court
to call upon the Lord Advocate to declare what was the course he meant to follow, and upon which indictment he meant to allege the guilt of the prisoner. The answer was made by the public prosecutor as to the one upon which he meant to rest, and it was after that that the trial proceeded, and the Court declared the others abandoned. The diet of none of them appears to have arrived. But if any such proceeding as this was to be attempted, your Lordships would require no statute, no recourse to books, but only the dictates of your own consciences to know what you should do, as I have not a shadow of doubt in my mind, that a public prosecutor is not entitled to vacillate between his different charges, but that the service of a second must preclude him from going back to his first.
With regard to the practice, I am bound to say with your Lordships, that when it is looked narrowly into, it does not appear to me to rest upon so clear and indisputable a basis, as that it would be right for your Lordships to adopt it at once as the rule of the Court. It was a fair observation, that in some cases a pannel might wish to wave this or other objections; and in the case of Somerville, I see an obvious ground upon which he wished to go to trial; as the second indictment being cleared of the objection stated to the first, he had no object to ask for fifteen days more. He had no palpable or tangible interest in view, his witnesses being present, and he might have suffered prejudice if delay had taken place. Mr Clerk said he would have moved for delay on account of the absence of four witnesses at the first trial, but they were present at the last. He moved, however, for what was a substantial interest; namely, the expenses of the first indictment, but did not notice the propriety of doing away with it on the record; and there was an opinion given, that the question of expenses should be delayed till the issue of the second trial. I am clear, therefore, there was no interest in that case to insist upon the objection, which would have merely led to a fortnight's delay. This same consideration may apply to other cases, and it is better to follow the straight forward course, without entangling ourselves with former doubtful cases not precisely in point.
Having formed a clear opinion, that there is no principle, authority, or dictum, to induce us to think that the inducia had not run from the period of service, merely from the circumstance of the two diets having occurred on the same day; I am for following that course as to which we have so clear an example in the conduct of a lawyer of the first eminence, I mean Mr Duncan Forbes, who expressly
consented that the diet should be deserted without prejudice to his right to insist on the new indictment which he had raised.
Although I have a clear opinion that the induciæ here run from the date of service, in this and in every other case, if a person accused should state to the Court reasonable grounds for delay, I would attend to them. I am now only giving my opinion upon the law.
The Court then pronounced the following interlocutor :
"The Lord Justice Clerk and Lords Commissioners of Justiciary having resumed consideration of the objection stated in bar of trial at last sederunt, with the answer thereto, minutes of search as to the practice in similar cases given in in obedience to the order of Court, and heard parties procurators further: Find that the service of the second indictment during the currency of the first indictment was competent; but in respect that his Majesty's Advocate has judicially declared that he has abandoned the first indictment, desert the diet of that indictment without prejudice to the prosecutor insisting against the pannel on the second indictment as accords: Find that the service of the second indictment upon the pannel on the third day of May current, being fifteen free days before the day of compearance, gave him the benefit of the legal inducia, and therefore repel the objection on that plea, and ordain the pannel to plead to the second indictment.”
(Signed) D. BOYLE, I. P. D."
LORD JUSTICE CLERK.-William Edgar, are you guilty or not guilty?
WILLIAM EDGAR.-Not guilty.
Mr CLERK. I hope you will permit me to say, that so much of our time and attention have been already occupied, it would be extremely hard upon us to proceed now to argue upon the relevancy, upon which we have a great many considerations to offer. I need not suggest a particular time for your Lordships. I do not think it would be proper to attempt any encroachment upon your Lordships. I think you cannot go on with the trial before Monday next.
"The Lord Justice Clerk and Lords Commissioners of Justiciary continue the diet against William Edgar, pannel,